Arguments Against National Security

1936 Words 8 Pages
National security and the protection of a state’s citizens is a primary duty for a government. The protection of human rights is also a great responsibility and central to having a modern democracy. A government though must sometimes restrict the human rights of some of its citizens in order to protect the state and its people. The judiciary has a role in deciding when to intervene in the restriction of the human rights of the citizenry when it feels the government has gone too far. In this essay I would argue that the judiciary should not use defence on matters of national security restricting the citizenry’s human rights and should fulfil its role as an independent check on the government in charge of safeguarding human rights.
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They were given this responsibility by Parliament and it is an important role they must fulfil. The judiciary tend to use deference on national security matters because they are not experts on the issue. However, deference might not be the correct decision in all cases because most cases are on matters of procedure, rather than expertise; in those cases the courts should not refuse to decide the cases on the basis that they are security decisions and outside their expertise . The fact the government and Parliament are best placed to assess risk for national security can be questioned since they were wrong on the fact that Iraq had no weapons of mass destruction after the invasion . Their decision making can always be questioned by the fact that Mr. Jean Charles de Menezes was shot in the head on the assumption that he was a suicide bomber when he was not . The government can overreact in certain situation or just get information wrong. Judges can be an important body of oversight. Judges are well placed to make decisions on national security and terror issues because as Feldman notes “public bodies understandably tend to overestimate risk, and to overreact to it. There is a tendency to focus on the seriousness of the consequences in the event of the risk coming to pass, rather than on the likelihood of its coming to pass. A small likelihood of …show more content…
The issue with letting Parliament decide on these matters is that Parliament is under pressure from the majority, which can lead to enacting draconian measures against who they fear is the enemy, which is usually a minority with little protection . The courts are removed from this pressure and can question the need for new polices that Parliament may introduce which can infringe on human rights . The legitimacy of the judiciary comes from that fact that it has to have rational arguments, its decisions must come from a legal authority and the judiciary is independent from politics ensuring an unbiased opinion . This gives legitimacy to judicial decisions against unjust laws passed by the government. This is an important when human rights are being considered because with issues of national security can often lead to improper treatment of minorities and foreign nationals. The judiciary is best not to defer to Parliament on matters of national security as Lucia Zedner explains that with “judicial protestations of deference to ‘ministerial responsibility’, in practice it is the executive that makes most controversial decisions regarding security. Whatever deference judges owe ministers can hardly be said to extend to civil servants .” Since neither the judges nor civil servants are elected to office, judges

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